10 May, 2018
By Ivy B. Grey
Producing high quality legal writing is vitally important to success as a lawyer—but it’s difficult to learn. We have brilliant legal writing gurus, such as Bryan Garner, Ken Adams, and Gary Kinder to guide us, yet most legal writing isn’t good. How is that possible?
Most lawyers and law firms believe that when it comes to writing, they uniquely know better than anyone else. But as a profession, we’re producing more dense, convoluted, and error-prone writing than ever before. To make sure you never become one of those lawyers, this article will show you how to improve your legal writing. It shows the essential things you can do to ensure your memos, briefs, and agreements are presented cleanly and clearly, even when operating under time pressure.
Most legal writing is bad because we lawyers do not use our time properly. We mistakenly believe that all we need to know is the law and we don’t think much about the process or the presentation. But how we present information is as important as accurately stating the law. Without clear, concise, and consistent presentation, legal analysis and nuance will be lost.
It takes a well-honed process to get it right. The quality of your final written work will reflect the care and forethought that went into your work. Can you imagine how much cleaner and clearer our documents could be if all lawyers allocated enough time to each stage of the writing process?
Legal writing is a process. It involves planning, writing, revising, editing, and proofreading. It’s easy to mistake the act of typing words as the entirety of the process. But that isn’t it. When writers do this, the first draft is the only draft that they’ve ever written. It doesn’t have the opportunity to evolve.
According to a study conducted by McLuhan and Davies, a Toronto-based consulting firm specializing in communications, effective writers spend:
Legal writing is no different. The secret to producing the best document in the least amount of time, is to have a process based on careful time management.
Most legal authors get this step wrong, especially under time pressure. However, no matter what the deadline is, if you commit to spending more of your time planning and outlining, then the eventual output will be far better (and you will save time not having to make revisions at the end). If it is a 10-hour assignment, then four hours should be spent planning.
The first part of planning is thinking about your topic and getting something written so that you can go back to it. You can try a zero draft where you write anything that comes to mind for a specified period of time without regard to structure. You can also try mind mapping, clustering, or idea trees. The goal is to get something written.
The next step in this stage is to organize your information. Focus on your main points, your goals, and your audience. Decide what to include and what to cut. After you’ve organized your information, you should be ready to create an outline with headings, subheadings, and main topics.
Learning the tools of the legal trade will help here. Using MS Word styles for your headings and subheadings will give you an outline that you can use while you write. Your headings and subheadings will show up in the navigation pane in your document on the left side. The navigation pane combined with styles gives you a living outline of your document that you can see as you write. Seeing your outline will help you adhere to the structure you set out. You can even move pieces of your document around using the navigation pane.
The groundwork you laid by planning ahead will ensure this takes less time than you may be used to. So review your outline and begin writing. The goal of the first draft is to get completed thoughts written out so that you may start to edit and your draft can evolve. Remember that the first draft should take only 25% of your time.
As you write, make sure that you are sticking to your outline and not including stray or disconnected ideas. Restraint on the front end means that you will have less to cut or focus when you edit. In your first draft, you are simply filling in your outline with content and fleshing out your ideas.
If this is a 10-hour assignment, three and one-half hours should be spent on this part of the process. Most legal writers only spend 10% of their time here—and it shows. But don’t mistake these three activities as the same. Revising, editing, and proofreading are each distinct tasks that should be done separately. Attempting to combine them will yield poor results.
Revising is the process of re-seeing your document. You are making large- and small-scale organization changes, making your points clearer, and tailoring your writing for your audience. Revising is essential to creating a document that serves its purpose. Most writers will need to revise several times before their ideas are clear and ready for the next step. Because you are the only person who knows what you meant to write, it is not appropriate to completely delegate this task to another person or to technology.
Next, you will need to edit and proofread. Though many people use the terms interchangeably, they are different. Editing is the process of improving content, clarity, structure, and substance. Proofreading is the process of reviewing a completed written document for inconsistencies, spelling, grammar, and punctuation errors, formatting mistakes, and typos. Both are integral, inter-related parts of the drafting process. You should make and follow a checklist for each of these tasks because your brain will lose focus if you try to do both at once. Start with more general checks and move on to progressively specific checks.
MS Word has some great built-in tools such as spelling and grammar check and the readability test, but great legal writing requires more. By this stage in the process, you will be overly familiar with your work and probably pressed for time. This is where specialized technology will make a difference!
PerfectIt with American Legal Style adds polish to your documents. It checks for over 13,000 legal-specific typos, inconsistencies, and other mistakes that no spell check or grammar check can find. It walks you through errors and provides recommended fixes. PerfectIt draws from the legal writing guidelines that every lawyer knows (but may not have the time to use). Use it to ensure that this part of the process is as smooth and efficient as possible.
You can start being a better legal writer today. The key is putting in place a process that gives you enough time for every stage of document preparation. Remember to allocate time for planning, writing a first draft, and then revising, editing, and proofreading. You can manage your time even more effectively if you use low-cost tools like PerfectIt to cut the amount of time spent proofreading. These simple steps will help you immediately improve your written work. The result is error-free documents and clean presentation that will improve the overall impression of your writing and make sure your legal work is looked on highly by lawyers, non-lawyers and even legal writing gurus.
Ivy B. Grey is the author of American Legal Style for PerfectIt. It adds polish, reduces frustration, and saves non-billable time. Ms. Grey is also a Senior Attorney at Griffin Hamersky LLP. She's been named as a Rising Star in the New York Metro Area three years in a row, and her significant representations include In re AMR Corp. (American Airlines), In re Dewey & LeBoeuf LLP, In re Eastman Kodak Company, and In re Nortel Networks Inc.